No Release for Defendant Found Not Guilty by Reason of Insanity

United States v. Livesay, ___ F.3d ___ , 2010 WL 918067 (10th Cir. 2010). Bipolar defendant found not guilty by reason of insanity of possession of a firearm by a convicted felon (he shot firearm into ground and pellets hit state officers; state decided not to prosecute, D checked self into mental health treatment facility. Feds then picked up the charges). As required, district court ordered an evaluation, and government psychiatrist found defendant fine because currently under treatment, but opined that if treatment should end, there was a high likelihood his symptoms would return and he could be potentially violent. The psych would not recommend unconditional release because there was “a high likelihood that he might become non-compliant with treatment.” District court determined that it was not statutorily authorized to conditionally release defendant to the treatment facility because defendant had not shown by clear and convincing evidence that his release would not create a substantial risk of serious bodily injury to another or damage to property because of a present mental disease. The district court remanded him to custody of Attorney General.

The only matter defendant challenged on appeal was whether the district court could conditionally release him to the treatment program. The Court holds district court had no choice–the statute mandates with the word “shall” that if the defendant does not meet his burden, he shall be remanded to the custody of the Attorney General. Plus, the statutory scheme allows for post-commitment conditional release (which confirms interpretation of “shall”) and that would presumably allow for a more complete assessment of the defendant’s condition.